Welcome to the new Becker-Posner Blog, maintained by the University of Chicago Law School.

07/05/2009

The Senate Filibuster -Becker

The United States, as the name indicates, was formed as a confederation of independent states-initially only 13, but since expanded to 50. The first Federal government was based on The Articles of Confederation, but that was abandoned because it gave too little power to the Federal government. It was replaced in 1787 by the Constitution. Many governance rules have been a compromise between the growing power of the federal government, and the original vision of the country as a confederation of states that retain much of the legislative powers.
Posner describes the evolution of the Senate from a few members appointed by state legislatures to a much larger body elected directly by the voters of each state, where each member serves a 6-year term that is renewable indefinitely. Small states, like Rhode Island, have the same number of senators as the most populous states of California and New York. The Senate is an anachronistic byproduct of the original concept of a federation of states since in the modern world the federal government dominates state governments. The potential influence of a relatively small number of states is increased by the supermajority rule that is embodied in the filibuster.
The Senate filibuster is not a part of the Constitution, but is a rule the Senate established. However, the protection the filibuster gives to minorities does fit in with the belief of the founders of the nation that the power of majorities needs to be constrained in order to protect the interests of minorities. The Constitution, and the checks and balances among the executive, legislative, and judicial branches of government, are important ways they devised to rein in the power of majorities.
Whether someone likes or dislikes the use of the filibuster on particular issues usually comes down to whether they like the legislation that the majority is trying to pass. However, the evaluation of the Senate filibuster as a legislative rule should depend on whether filibusters have blocked desirable legislation more than they prevented the abuse of power by a majority, especially power by a temporary majority. Its main use during the past 70 years is not reassuring since Southern senators filibustered on several occasions against civil rights legislation in order to protect discrimination by Southern states against blacks. However, their filibusters did no more than delay the passage of this legislation, and the delay gave time for the South to become reconciled to the necessity of giving Southern blacks more equal rights.
The mere threat of a filibuster has sometimes discouraged the bringing up of bills in Congress, although these threats also probably only temporarily delayed passage of legislation with a strong and sustained majority interest. Even senators that oppose particular legislation hesitate to filibuster legislation that has a strong mandate since they risk becoming unpopular. Yet they may use the threat of a filibuster to extract a compromise more favorable to their position.
The use of the filibuster has been rising over time: the 110th Congress had over 100 closure votes to try to cut off further debate. The Democratic majority in the present Congress seemed intent on achieving a "filibuster proof" majority of 60 members. Yet, as Posner discusses, having just the minimum number of senators that can enforce the closure rule gives considerable bargaining power to Democratic senators who do not strongly endorse the Democratic position on particular legislation.
I generally support requiring super majorities in the legislature on a selected number of major issues because I believe the abuse of majority power is a greater danger in the world of big government than is the blocking of the majority's will. To be sure, the Senate filibuster is not the ideal way to do this, partly because it is not confined to major issues, and partly because the Senate is based on representation by states rather than by population. Nevertheless, the filibuster may well be better than the alternative of having just straight majority voting in both houses.

Comments

You can follow this conversation by subscribing to the comment feed for this post.

These are interesting notes.

We can think of an anti-majoritarian filibuster in roughly the same way that we think of the counter-majoritarian difficulty of judicial review (see A. Bickel)with an important difference I note below. Neither the filibuster nor judicial review is majoritarian, but as you note, "the abuse of majority power is a greater danger in the world of big government than the blocking of the majority's will."

It therefore puzzles me that both parties are able to support filibusters (at least tacitly), redistricting, poison pill amendments, and other anti-democratic devices employed by the legislative branch at the same time that they increasingly oppose judicial review of popular action. A filibustering senator is just as undemocratic as a federal judge, and he is most likely stupider.

The difference, as I see it, is that people are often happier to protect minority states (that is, states that are sparsely populated, and for good reason) than minority populations within those states. That was the national debate in the civil rights movement: whether to sympathize with the minorities within segregated states (where the Southern states were the antagonists), or with the minority of states that practiced segregation (where the meddling desegregated states were the antagonists).

If 50 Senators simply voted for a bill and held their ground then a Supreme Court ruling is in the docket. So filibuster only works when at least 50 Senators agree that a Supreme Court case is worse the any bill they desire.

I'm all for an inefficient government. The more inefficient the better. Could you imagine what garbage would be legislated if the government were 'efficient'? Each legislator would take turns satisfying his/her constituents while trying to regulate society towards 'equality'.

The cost of poorly thought out social programs is too great to let the simple majority have a free pass in enacting them. Once a program is in place it is practically permanent (e.g. Social Security, Medicare, etc.).

Unfortunately, the government is not inefficient enough and we will likely see some doozies passed in my lifetime (public healthcare, carbon cap and trade, card check, protectionist trade, etc.).

The irony for me as a Chicago grad is the explicit stamp of approval the school gives (via Prof. Goolsbee) to these policies.

I only wish we paid politicians to filibuster and campaign. It would be much cheaper!

Agreed. I think one of the more compelling arguments in favor of Judge Posner's "Schumpeterean" concept of democracy is that it's the least costly way to deal with the subset of every population that will have political ambitions.

When politicians complain about a procedural rule being "inefficient," as members of the public we can generally cheer because the incentives of politicians is to draw more resources to themselves. Unlike the rest of us, however, most politicians don't have to deal with the fallout when their plans don't work. Will the Obama Administration still be around when the financing bills for this round of stimulus comes due? Perhaps because things seem to be moving faster now than ever before.

I have posted a lengthy analysis in support of bicamerlism, the need for the Senate, and the virtues of the filibuster under Posner's comments.

With regard to this statement:

"The Constitution, and the checks and balances among the executive, legislative, and judicial branches of government, are important ways they devised to rein in the power of majorities",

my comments analyse and explain why for the estimated 45 million or so of us adults DX'd with autism, without bicamerlism, the Senate, and the filibuster we would have no hope of any peer representation in any of our three Branches of Government.

Leaving some estimated 45 million adult Americans with autism and savant abilities out of all peer representation in our Government is not a small externality, but one of such RISING AUTISM EPIDEMIC NUMBERS that it could well bankrupt this Nation.

Ensuring that adults with autism can meaningfully participate in our Government is essential to the health of the Nation.

~EquiisSavant
DX, high functioning autism and savant abilities in art and the law
Juris Doctorate, July 1997 Calif. Bar Exam passage
http://equiisautisticsavantartist.webs.com/

Could you help me. Life is a great big canvas; throw all the paint on it you can.
I am from Barbados and learning to read in English, give true I wrote the following sentence: "You will also be more likely to find unique designs for the discount bunk beds that you can find at."